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Filing # 41485490 E-Filed 05/13/2016 04:18:19 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 2016-CA-2283
DIVISION: FC-B
FIRST NIAGRA BANK NATIONAL ASSOCIATION
Plaintiff,
vs.
JENNIFER TAYLOR et al.
Defendant.
DEFENDANTS’ ANSWER TO THE COMPLAINT FOR FORECLOSURE
AND AFFIRMATIVE DEFENSES
Defendant JENNIFER TAYLOR (hereinafter “Defendant”) by and through the
undersigned counsel, The Law Office of Robert J. Slama, P.A., files this Answer and Affirmative
Defenses in response to Plaintiff's Verified Complaint in Mortgage Foreclosure and states:
1 Defendant admits to the allegations of paragraph 1 for jurisdictional purposes
only.
2. Admitted that the document was recorded, but Defendant is without sufficient
information to admit or to deny the allegations of paragraph 2 and demands strict proof thereof.
3 Defendant is without knowledge to the allegations of paragraph 3, therefore
denied.
4. Defendant is without knowledge to the allegations of paragraph 4, therefore
denied.
5 Admitted.
FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 05/15/2016 10:26:25 AM
Defendant is without knowledge to the allegations of paragraph 6, therefore
denied.
Defendant is without knowledge to the allegations of paragraph 7, therefore
denied.
Defendant 1S without knowledge to the allegations of paragraph 8, therefore
denied.
9. Defendant 1S without knowledge to the allegations of paragraph 9, therefore
denied.
10. Defendant is without knowledge to the allegations of paragraph 10, therefore
denied.
ll Defendant is without knowledge to the allegations of paragraph 11, therefore
denied.
12. Defendant is without knowledge to the allegations of paragraph 12, therefore
denied.
13. Defendant is without knowledge to the allegations of paragraph 13, therefore
denied.
14. Defendant is without knowledge to the allegations of paragraph 14, therefore
denied.
AFFIRMATIVE DEFENSES!
1 FAILURE OF CONTRACTUAL CONDITION PRECEDENT: INVALID,
INEFFECTIVE NOTICE OF DEFAULT: Plaintiff failed to provide Defendant with a Notice
of Default and Intent to accelerate that complies with Paragraph 9 titled “REMEDIES ON
DEFAULT” of the subject Mortgage. As a result, Defendant has been denied a good faith
' Shahar v. Green Tree Servicing LLC, ___ So. 3d _ , 38 Fla. L. Weekly D563 (Fla. 4° DCA 2013).
opportunity pursuant to the Mortgage and the servicing obligations of the Plaintiff to avoid
acceleration through, among other things, loss mitigation, forbearance and workout programs.
2. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND
UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to
deal fairly with this Defendant by failing to follow the applicable standards of residential single
family mortgage lending and servicing as described in these Affirmative Defenses thereby
denying this Defendant access to the residential mortgage servicing protocols applicable to the
subject note and corresponding first real estate mortgage, referenced in the subject Mortgage, but
not attached with the complaint in violation of Rule 1.130(a), Florida Rules of Civil Procedure.
3 UNCLEAN HANDS: By failing to provide proper notice to the Defendant as
required by the Mortgage, the Plaintiff comes to court with unclean hands and is prohibited by
reason thereof from obtaining equitable relief from this Court. The Plaintiff's unclean hands
tesult from the Plaintiff's intentional failure to comply with material terms of the mortgage and
note. As a matter of equity, this Court should refuse to grant the relief requested in the complaint
because acceleration of the note would be inequitable, unjust, and the circumstances of this case
render acceleration unconscionable. This court should refuse the acceleration and deny
foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so
because of misleading conduct and unfulfilled conditions.
4. PAYMENTS/WAIVER: Plaintiff has accepted monthly payments by Defendant
on days other than the Ist day of each month. As a result, Plaintiff has not complied with the
terms of the subject Mortgage and thus, has waived the right to bring or pursue an action for
claim of default. In the alternative, the Plaintiff has waived by conduct any such entitlement to
payment.
5 FAILURE TO PLEAD PROPER CAPACITY: The identification of the
Plaintiff appears only in the caption, the prefatory paragraph of the Complaint, and in the
attached Note. In the subject Note, Plaintiff references a first real estate mortgage as collateral
for the subject Note. Fla. R. Civ. P. Rule 1.310(a) requires a Plaintiff to attach copies of all
“bonds, notes, bills of exchange, contracts, accounts or documents upon which action may be
brought” to its complaint. Plaintiff has attached a copy of the subject Mortgage, however has
failed to attach a copy of the original corresponding collateral first real estate mortgage. Thus,
Plaintiff has not properly plead it has capacity to maintain the suit by filing with the Court the
original loan documents and that it has possession of those documents.
6 The Plaintiff has materially breached the contract, and thereby, terminated
Defendant’s obligation under the contract.
7. The Plaintiff prematurely accelerated the contract and the ensuing provisions
contrary to providing required notices as set forth in Paragraph 9 “Remedies on Default” but
improperly accelerated the contract without complying with the note and mortgage.
8 The Plaintiff has, by its conduct, waived the right to accelerate or declare a breach
of the agreement. Otherwise, the Plaintiff is equitably estopped from asserting the contractual
provisions claimed to be in breach.
9 The Plaintiff has failed to comply with all conditions precedent to filing the
instant action, including providing notice of breach and the intent to acceleration as set forth in
the note and mortgage.
10. The Plaintiff has failed to provide the Defendant with an opportunity to
restructure the loan based upon Federal Law, including the Economic Stabilization Act, et seq.,
and the ensuing legislation to assist homeowners as ordered by the Secretary of the Treasury,
including the pending settlement with the Attorney’s General.
IL. The Plaintiff has failed to state a claim upon which relief can be granted as the
verification fails to set forth that the Affiant, Daneisha Hunt, Asistant Vice President has the
knowledge and it is within her knowledge to testify to the matters contained therein or that she
personally reviewed those matters and has knowledge regarding same.
12. The Plaintiff has failed to serve all required notices and comply with the Real
Estate Settlement Procedures Act (12 U.S.C. Section 2601) and its implementing regulation 24
C.F.R. Part 3500.
13. The Plaintiff lacks standing as the named Plaintiff is not the same as owner status
as set forth in Section 673.2031.
14. The Plaintiff lacks standing to file his action as there is no assignment of
mortgage of the subject note attached to its complaint. In re: Shelter Development Group, Inc.,
50 B.R. 588 (Bankr. S.D.Fla. 1985).
15. The Defendant reserves the right to file amendments to the affirmative defenses as
discovery ensues and additional investigation and facts are received, and does not hereby waive
any such defenses that may exist in law or fact.
16. The Plaintiff is not in possession of the Note and Mortgage.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been served upon
John Anthony Van Ness FL391832 via Florida ePortal to E-Filing@vanlawfl.com this 13th day
of May, 2016.
ROBERT J. SLAMA, P.A.
6817 Southpoint Parkway, Suite 2504
Jacksonville, Florida 32216
/s/ Robert J. Slama
Robert J. Slama, Esquire
Florida Bar No,: 919969
(904) 296-1050 Telephone
(904) 296-1844 Facsimile
support @robertjslamapa.com
Attorney for Defendants
Preview
Filing # 41485490 E-Filed 05/13/2016 04:18:19 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 2016-CA-2283 DIVISION: FC-B FIRST NIAGRA BANK NATIONAL ASSOCIATION Plaintiff, vs. JENNIFER TAYLOR et al. Defendant. DEFENDANTS’ ANSWER TO THE COMPLAINT FOR FORECLOSURE AND AFFIRMATIVE DEFENSES Defendant JENNIFER TAYLOR (hereinafter “Defendant”) by and through the undersigned counsel, The Law Office of Robert J. Slama, P.A., files this Answer and Affirmative Defenses in response to Plaintiff's Verified Complaint in Mortgage Foreclosure and states: 1 Defendant admits to the allegations of paragraph 1 for jurisdictional purposes only. 2. Admitted that the document was recorded, but Defendant is without sufficient information to admit or to deny the allegations of paragraph 2 and demands strict proof thereof. 3 Defendant is without knowledge to the allegations of paragraph 3, therefore denied. 4. Defendant is without knowledge to the allegations of paragraph 4, therefore denied. 5 Admitted. FILED: DUVAL COUNTY, RONNIE FUSSELL, CLERK, 05/15/2016 10:26:25 AM Defendant is without knowledge to the allegations of paragraph 6, therefore denied. Defendant is without knowledge to the allegations of paragraph 7, therefore denied. Defendant 1S without knowledge to the allegations of paragraph 8, therefore denied. 9. Defendant 1S without knowledge to the allegations of paragraph 9, therefore denied. 10. Defendant is without knowledge to the allegations of paragraph 10, therefore denied. ll Defendant is without knowledge to the allegations of paragraph 11, therefore denied. 12. Defendant is without knowledge to the allegations of paragraph 12, therefore denied. 13. Defendant is without knowledge to the allegations of paragraph 13, therefore denied. 14. Defendant is without knowledge to the allegations of paragraph 14, therefore denied. AFFIRMATIVE DEFENSES! 1 FAILURE OF CONTRACTUAL CONDITION PRECEDENT: INVALID, INEFFECTIVE NOTICE OF DEFAULT: Plaintiff failed to provide Defendant with a Notice of Default and Intent to accelerate that complies with Paragraph 9 titled “REMEDIES ON DEFAULT” of the subject Mortgage. As a result, Defendant has been denied a good faith ' Shahar v. Green Tree Servicing LLC, ___ So. 3d _ , 38 Fla. L. Weekly D563 (Fla. 4° DCA 2013). opportunity pursuant to the Mortgage and the servicing obligations of the Plaintiff to avoid acceleration through, among other things, loss mitigation, forbearance and workout programs. 2. FAILURE OF GOOD FAITH AND FAIR DEALING: UNFAIR AND UNACCEPTABLE LOAN SERVICING: Plaintiff intentionally failed to act in good faith or to deal fairly with this Defendant by failing to follow the applicable standards of residential single family mortgage lending and servicing as described in these Affirmative Defenses thereby denying this Defendant access to the residential mortgage servicing protocols applicable to the subject note and corresponding first real estate mortgage, referenced in the subject Mortgage, but not attached with the complaint in violation of Rule 1.130(a), Florida Rules of Civil Procedure. 3 UNCLEAN HANDS: By failing to provide proper notice to the Defendant as required by the Mortgage, the Plaintiff comes to court with unclean hands and is prohibited by reason thereof from obtaining equitable relief from this Court. The Plaintiff's unclean hands tesult from the Plaintiff's intentional failure to comply with material terms of the mortgage and note. As a matter of equity, this Court should refuse to grant the relief requested in the complaint because acceleration of the note would be inequitable, unjust, and the circumstances of this case render acceleration unconscionable. This court should refuse the acceleration and deny foreclosure because Plaintiff has waived the right to acceleration or is estopped from doing so because of misleading conduct and unfulfilled conditions. 4. PAYMENTS/WAIVER: Plaintiff has accepted monthly payments by Defendant on days other than the Ist day of each month. As a result, Plaintiff has not complied with the terms of the subject Mortgage and thus, has waived the right to bring or pursue an action for claim of default. In the alternative, the Plaintiff has waived by conduct any such entitlement to payment. 5 FAILURE TO PLEAD PROPER CAPACITY: The identification of the Plaintiff appears only in the caption, the prefatory paragraph of the Complaint, and in the attached Note. In the subject Note, Plaintiff references a first real estate mortgage as collateral for the subject Note. Fla. R. Civ. P. Rule 1.310(a) requires a Plaintiff to attach copies of all “bonds, notes, bills of exchange, contracts, accounts or documents upon which action may be brought” to its complaint. Plaintiff has attached a copy of the subject Mortgage, however has failed to attach a copy of the original corresponding collateral first real estate mortgage. Thus, Plaintiff has not properly plead it has capacity to maintain the suit by filing with the Court the original loan documents and that it has possession of those documents. 6 The Plaintiff has materially breached the contract, and thereby, terminated Defendant’s obligation under the contract. 7. The Plaintiff prematurely accelerated the contract and the ensuing provisions contrary to providing required notices as set forth in Paragraph 9 “Remedies on Default” but improperly accelerated the contract without complying with the note and mortgage. 8 The Plaintiff has, by its conduct, waived the right to accelerate or declare a breach of the agreement. Otherwise, the Plaintiff is equitably estopped from asserting the contractual provisions claimed to be in breach. 9 The Plaintiff has failed to comply with all conditions precedent to filing the instant action, including providing notice of breach and the intent to acceleration as set forth in the note and mortgage. 10. The Plaintiff has failed to provide the Defendant with an opportunity to restructure the loan based upon Federal Law, including the Economic Stabilization Act, et seq., and the ensuing legislation to assist homeowners as ordered by the Secretary of the Treasury, including the pending settlement with the Attorney’s General. IL. The Plaintiff has failed to state a claim upon which relief can be granted as the verification fails to set forth that the Affiant, Daneisha Hunt, Asistant Vice President has the knowledge and it is within her knowledge to testify to the matters contained therein or that she personally reviewed those matters and has knowledge regarding same. 12. The Plaintiff has failed to serve all required notices and comply with the Real Estate Settlement Procedures Act (12 U.S.C. Section 2601) and its implementing regulation 24 C.F.R. Part 3500. 13. The Plaintiff lacks standing as the named Plaintiff is not the same as owner status as set forth in Section 673.2031. 14. The Plaintiff lacks standing to file his action as there is no assignment of mortgage of the subject note attached to its complaint. In re: Shelter Development Group, Inc., 50 B.R. 588 (Bankr. S.D.Fla. 1985). 15. The Defendant reserves the right to file amendments to the affirmative defenses as discovery ensues and additional investigation and facts are received, and does not hereby waive any such defenses that may exist in law or fact. 16. The Plaintiff is not in possession of the Note and Mortgage. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served upon John Anthony Van Ness FL391832 via Florida ePortal to E-Filing@vanlawfl.com this 13th day of May, 2016. ROBERT J. SLAMA, P.A. 6817 Southpoint Parkway, Suite 2504 Jacksonville, Florida 32216 /s/ Robert J. Slama Robert J. Slama, Esquire Florida Bar No,: 919969 (904) 296-1050 Telephone (904) 296-1844 Facsimile support @robertjslamapa.com Attorney for Defendants